Hirsch, Kayden Kross & Co Appeal Condom Law

LOS ANGELES from www.courthousenews.com – – Pornographic film producers have appealed a ruling upholding a Los Angeles County law that actors must wear condoms.

U.S. District Judge Dean Pregerson law week upheld Measure B, the Safer Sex in Adult Industry Act, while finding merit to claims that some parts of the new law are unconstitutional.

Plaintiffs Vivid Entertainment, Califa Productions, and porn actors Kayden Kross and Logan Pierce sued the county in January, claiming the law, approved by voters in November 2012, violates their free speech rights.

They filed a notice of appeal to the 9th Circuit on Monday.

Measure B requires porn actors in Los Angeles County to take blood-borne pathogen training to reduce the spread of sexually transmitted diseases, and pay a fee to the L.A. County Department of Public Health for a film permit.

A film permit may be revoked if actors or producers violate the law.

The AIDS Healthcare Foundation, official advocate of the ballot measure, intervened in the lawsuit after the county said it would not defend the law’s constitutionality.

In his 34-page ruling, Judge Pregerson handed partial victories to the pornographers and to the Foundation.

Pregerson agreed with the filmmakers that provisions to enforce the law are too sweeping – including powers to revoke permits, conduct warrantless searches of film sets and charge fees for permits.

But Pregerson said the condom law would help protect against sexually transmitted diseases in a “direct and material way.”

Finding the pornographers’ First Amendment claim “unlikely to succeed on the merits,” Pregerson denied a preliminary injunction on that issue.

The ruling cites data from the Department of Public Health showing an increased risk of infection from sexually transmitted diseases among porn actors, including chlamydia and gonorrhea.

The adult film industry claims it protects its performers by regularly testing for STDs. But Pregerson said the data introduced by the AIDS Healthcare Foundation told a different story.

The filmmakers “by contrast, have presented evidence from individuals in the adult film industry, but not in the public health or medical profession, who claim testing is so effective and universal that condoms are unnecessary,” Pregerson wrote.

But Pregerson found that a permit fee of $2,000 to $2,500 could be unconstitutional because the AIDS Healthcare Foundation failed to show those fees cover only “revenue-neutral” administration costs.

The judge was skeptical of a provision that lets the county revoke a producer’s permit without judicial review.

He also found the county should not conduct warrantless searches of porn sets to determine whether producers are violating the law.

That left the question of whether Measure B, stripped of those provisions, will be as effective.

Pregerson said that with some tweaking the county can still enforce the law.

“Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders,” Pregerson wrote.

On fees, the judge saw “no reason to believe the Department’s Measure B duties cannot be performed without fees – or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this court with evidence of revenue neutrality.”

Adult Video News reported that by striking down parts of Measure B, “enforcing the law will now be more complex and expensive for city and county officials.”

The AIDS Healthcare Foundation, however, called the result a “tremendous, tremendous victory.”

Foundation president Michael Weinstein said the ruling is “one that will go a long way to safeguard the health and safety of those adult performers working in the industry.”